Sheriff’s office, district attorney at odds over missing evidence in shooting case

By Stephen Betts, BDN Staff
Posted Sept. 20, 2012, at 3:07 p.m.

ROCKLAND, Maine — The district attorney’s office and sheriff’s office in Knox County are at odds over why key evidence was not available for the trial of a lobsterman accused of firing a rifle at another fisherman.

The lack of that evidence played a role, although the prosecutor said it was not the only reason, in a decision to offer a deal that reduced the charges from felonies to misdemeanors.

James R. Simmons was sentenced Monday in Knox County Superior Court to 364 days in jail with all but 45 days suspended for criminal threatening and reckless conduct. He had originally been charged with more serious charges of criminal threatening with a dangerous weapon and reckless conduct with a dangerous weapon.

The victim in the case objected to the reduction although initially he had accepted that the deal should be made. But before the sentencing, the victim changed his mind and argued against the agreement because he learned it would leave Simmons without a record as a felon.

A family member of Simmons said Monday evening after the sentencing had occurred that the prosecutor said one of the reasons he was going ahead with the deal was because some key evidence had been lost, including a video from a surveillance camera at Wallace’s Lobster Wharf in Friendship where the shooting allegedly occurred on Dec. 4.

Assistant District Attorney Christopher Fernald said Thursday that the evidence was not lost but was never turned over to the district attorney’s office by the sheriff’s office. He said he made several requests — both by telephone and email — asking that both the surveillance video and a ballistics report on a shell casing found under the wharf be provided to him. The shell casing matched the rifle seized from Simmons, Fernald said.

Fernald said the case would have been stronger with the evidence.

The evidence was not presented by the time that a jury was to be selected and that is when he met with the victim and decided to offer the reduced charges.

Knox County Sheriff Donna Dennison, however, disputes Fernald’s account of what happened with the evidence.

Dennison said that she was told by her officer that the ballistics report was brought to the district attorney’s office on more than one occasion and that it apparently got lost there. She said she believes the video also was presented to the district attorney’s office.

The deputy who investigated the case could not immediately be reached for comment on Thursday.

Dennison said she would take steps to make sure that deputies note when they leave evidence and who it is left with so this type of problem does not occur again.

According to an affidavit filed by Deputy James Moore in December, the victim said he arrived at Wallace’s Lobster Wharf on Dec. 4 and saw James Simmons. The victim said Simmons ran back to his truck, came out with a rifle and fired at him. Simmons also yelled to the man that he would soon kill him, according to the affidavit.

The affidavit also described how the video from the surveillance camera at the wharf showed a vehicle arriving and then Simmons going to his vehicle and “removing what appeared to be a weapon.” He then walks in the direction where the other vehicle had arrived and several minutes later, Simmons is seen placing the weapon back into his vehicle, the document states.

The victim was not struck. The victim claimed that Simmons accused him of cutting his lobster traps, a claim the victim denied.

Fernald said that the lack of that evidence was not the only reason for the decision to reach an agreement with the defense in exchange for guilty pleas. District Attorney Geoffrey Rushlau said that there would have been evidence of bad blood between the two men.

Defense attorney Steven Peterson said at Monday’s hearing that this would definitely have been a case of self defense if the matter had gone to trial.

The district attorney said that there are issues across the state, to varying degrees, of evidence not being turned over to prosecutors by police departments. He said there is more evidence collected now than in the past with the addition of digital audio and video recordings and videos from cruisers.

“It’s a continuous process of education,” Rushlau said about getting all evidence turned over to his office.

He said while he would not classify the failure to get the evidence in the Simmons case as the worst instance, it did rank in the upper echelon of cases.

“Whenever there is a threat with a weapon, we certainly find it troubling,” Rushlau said, referring to the significance of the case.

http://bangordailynews.com/2012/09/20/news/midcoast/sheriffs-office-district-attorney-at-odds-over-missing-evidence-in-shooting-case/ printed on September 22, 2014